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Introduction

In domestic abuse, a woman’s freedom is inhibited and negative freedom sets in ‘negative freedom is when a woman is abused and barred from leaving her home based on a negative freedom model (Hirschmann, 2013:58) or develops a ‘battered woman’s syndrome’’, and such a situation complicates freedom (Walker, 2017).

In this chapter, we find that Muslim women are not essentialised or their experiences are generalised into a single mould, as Muslim women who align themselves with Islam inhabit various sectarian, ideolog­ical and analytical understanding of Islam. Rather, the author uses this to qualify the identity of women who not only subscribe to the faith but actively see themselves as ‘practising’ it (in whichever form they do so).

The family courts under the Practice Direction 12J (Family Pro­cedure Rules, PD12J - Child Arrangements and Contact: Domestic Abuse and Harm, Family Procedure Rules (8 December 2017)) adopted a revised definition to include dowry-related abuse, honour-based abuse and transnational marriage abandonment.1 However, the Do­mestic Abuse Act 2021 introduces a new statutory definition to be gender-neutral and compliant to the Istanbul Convention.

Domestic abuse cases present the most intractable forms of power imbalances between couples when conducting mediation. The scope of this chapter is limited to discussion in the context of heterosexual domestic relationships focusing on Muslim women.2 The existence of violence-based and other imbalances of power in homosexual rela­tionships is acknowledged. This chapter proceeds on the assumption that the issue of domestic abuse itself cannot be mediated. Domestic

DOI: 10.4324/9781003090410-5

Domestic. Abuse 79 abuse issues highlight the need to consider ways in which mediators can begin to mitigate this navigation of power and respond to cultural difference in ethical ways (Brigg, 2008:52).

Morgan Brigg (2008) argues that in Western mediation practice, conflict and violence are typically seen as destructive and unhelpful, and this attitude precludes the constitutive and productive role that mediation plays in many non-Western traditions and particularly the emergence of Islamic me­diation in North America and England (Brigg, 2008:287; Abdalla, 2001). Brigg (2008:292) draws upon Michel Foucault’s (1982) con­ception of ‘power’ to the application in mediation.3 Foucault’s (1982) hypothesis of ‘power struggle’ asserts that it is impossible to separate power from social relations, for example, in family relations. English family law can to some extent address gender inequalities and power imbalances, but law is not entirely gender conscious (Webley, 2017). Therefore power imbalances cannot be completely ruled out in family relations with unequal powers and it is bound to happen between par­ties (not always in favour of men) in an informal non-state setting, for example, disputes being resolved using faith-based dispute resolution such as Shari’a Councils.

British Muslim women are better informed about gender equality, but some choose to live by patriarchal customs (Okin, 1999). Susan Moller Okin (1999) argues that most cultural and religious groups, including minorities within the West, often limit and harm women, particularly where they are concerned with keeping male power over women. For example, setting conditions such as restricting the amount of financial entitlement (such as mahr, or property share which is com­mon for British Muslims) in Islamic marriage contract often creates an additional power imbalance between husband and wife, and Okin (1999) argues that to grant patriarchal cultural groups special rights would ignore the wellbeing of women. In private family relations, if inequality and patriarchy is part and parcel of the household and abuse against women, then media, religion and education is not likely to promote equality between parties (Bano, 2012; Webley, 2017).

Muslim women continue to choose religious arbitration and media­tion because they need a religious divorce (there are different types of divorces depending upon who instigates it and on the circumstances), recovery of mahr (nuptial gift) and/or Islamic arbitration. Therefore, this chapter proposes reforms for Muslim women in the following key areas: domestic abuse, litigants in person/lack of funding, religious authority and enhancement of mediation models based on egalitar­ian principles and/or an integrated co-mediator model (consisting of English and Islamic mediator). Setting up safeguards under Islamic

mediation and referring both vulnerable men and women to a panel of co-mediators (English and Islamic) for better screening will also lead to better compliance with mediation principles under English fam­ily law, particularly the Family Mediation Council’s (FMC) Code of Practice because this does not conflict with Islamic principles.4

The Home Office Report (2018)5 shed some light on the provision of advice in Islamic family disputes and the common issues of con­cern were gender inequalities, lax approaches to domestic abuse and violence, absence of child safeguarding mechanisms and ignoring me­diation principles under English family law, the FMC’s Code of Prac­tice. However, the 2018 report did not specifically deal with the causes of power imbalances in depth, particularly the underlying causes. In­stead it examined discrimination suffered and how this can be elimi­nated within Shari’a Councils. Discrimination and injustices generate considerable amounts of publicity and criticism when exposed and it brings into question whether the informal system is compatible with English legal principles (Griffith-Jones, 2013).6 This approach ignores the underlying problem that Islamic family law is not homogenous or codified and studies such as those of Elham Manea confirm that it adopts non-egalitarian principles (Manea, 2016). Ziba Mir-Hosseini (2015) proposes a constructive solution by adopting egalitarian Mus­lim family law which places gender justice at the core of Islamic legal tradition.

This can assist to overcome not only the external criticisms but also internal problems of power and gender imbalances when taking account of gender and justice (Bano, 2012). This means that there can be integration of specific elements of egalitarian principles of Islamic mediation into the general framework of mediation with certain safeguards in place to deliver a fair outcome, for example, in a co-mediation model (Islamic and English mediator). Islamic me­diation without safeguards conflicts with English legal principles of mediation (voluntary, confidential, impartial and suitable) and this can be found in the FMC’s Code of Conduct7 and safeguards for vic­tims of domestic abuse which exempts mediation (Family Procedure Rules 2010, (FPR) 3.8 (1)/(2)). While these safeguards can provide security to victims of abuse, it does not eliminate power imbalances completely.

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Source: Bano Samia (ed.). The Sharia Inquiry, Religious Practice and Muslim Family Law in Britain. Routledge,2023. — 143 p.. 2023
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